论海上人身伤害的民事责任
发布时间：2019-04-13 17:23
【摘要】：海上人身伤害的民事责任是侵权行为法和海商法的重要组成部分。民法学界对这一特殊的民事责任关注较少，而海商法以航运为中心的理念使其在海上人身伤害民事责任方面具有局限性。笔者将研究的视角置于海上人身伤害的民事责任，以民法中人身伤害民事责任的理论为框架，结合海上人身伤害的特殊性，对海上人身伤害的民事责任进行相对系统的分析。本文将从海上人身伤害的民事责任的概念与特征、归责原则、责任竞合以及责任范围等四个方面展开探讨。在讨论的过程中考虑并分析了国际公约和我国的法律现状，最后对我国海上人身伤害的法律制度的完善提出了几点改进的建议。 第一章首先，讨论了海上人身伤害的概念，认为海上人身伤害，是指在海上或与海相通的可航水域或与其他与海密切相关的特定处所经营、管理和服务活动中发生的人身伤害和精神损害；同时对海上人身伤害的时空要件和实质要件进行了分析，认为对于海上人身伤害的界定，比较全面的标准就是将形式要件与实质要件相结合。其次，分析了海上人身伤害民事责任的一般特征以及其不同于一般的民事责任的特征，主要表现在，，责任主体的特殊性、责任承担的不平衡性以及责任规制的国际性和强制性。再次，根据不同的标准对海上人身伤害的民事责任进行了分类。 第二章以民法的相关原理为指导，同时考虑到我国海商法律移植的特殊性，分析了海上人身伤害民事责任的归责体系。从当事人之间的法律关系的角度出发，结合责任性质阐述了海上人身伤害赔偿责任的归责原则。 第三章主要论述的是海上人身伤害的责任竞合问题。我国民法领域是承认责任竞合的，海商法对当海事责任竞合的适用与民法有所不同。国际公约对责任竞采取了避免和回避的态度，我国的海商法既没有借鉴公约中细分责任基础、回避责任竞合的做法，也没有创立特别的处理办法，而是选择了国内民法的处理办法，承认竞合并予以限制。笔者认为，这对海商法的国际统一有不利的影响。 第四章主要讨论是海上人身伤害赔偿责任的范围。其中涉及赔偿的原则，责
[Abstract]:Civil liability for personal injury at sea is an important part of tort law and maritime law. The civil law circles pay little attention to this special civil liability, but the maritime law takes the shipping as the center idea makes it have the limitation in the maritime personal injury civil liability. The author puts the research perspective into the civil liability of personal injury at sea, taking the theory of civil liability of personal injury as the frame and combining the particularity of personal injury at sea, to analyze the civil liability of personal injury at sea relatively systematically. This paper discusses the concept and characteristics of civil liability for personal injury at sea, the principle of imputation, the concurrence of liability and the scope of liability. In the course of the discussion, the international conventions and the current legal situation of our country are considered and analyzed. At last, some suggestions for the improvement of the legal system of personal injury at sea in China are put forward. Chapter one first discusses the concept of personal injury at sea, and considers that personal injury at sea refers to the operation of personal injury at sea or in navigable waters connected with the sea or other specific premises closely related to the sea, Physical and mental injury occurring in management and service activities; At the same time, this paper analyzes the space-time elements and the essential elements of personal injury at sea, and thinks that the more comprehensive standard for the definition of personal injury at sea is to combine the formal elements with the substantive elements. Secondly, this paper analyzes the general characteristics of the civil liability for personal injury at sea and its characteristics different from the general civil liability, which is mainly manifested in the particularity of the subject of liability, the imbalance of liability burden and the international and mandatory regulation of liability. Thirdly, the civil liability of personal injury at sea is classified according to different standards. The second chapter, guided by the relevant principles of civil law and taking into account the particularity of China's maritime law transplantation, analyzes the civil liability system for personal injury at sea. From the angle of the legal relationship between the parties, this paper expounds the liability imputation principle of maritime personal injury compensation according to the nature of liability. The third chapter mainly discusses the liability concurrence of personal injury at sea. The concurrence of liability is recognized in the field of civil law in our country, and the application of maritime law to the concurrence of maritime liability is different from that of civil law. International conventions have adopted the attitude of avoidance and avoidance of liability competition, and China's maritime law neither draws lessons from the basis of subdivision of liability in the Convention, avoids the practice of concurrence of liability, nor creates a special approach to dealing with it. But the choice of domestic civil law treatment, recognition of merger to limit. In my opinion, this has a negative impact on the international unification of maritime law. The fourth chapter mainly discusses the scope of liability for personal injury at sea. It relates to the principle and responsibility of compensation
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D99;D923
本文编号：2457786
[Abstract]:Civil liability for personal injury at sea is an important part of tort law and maritime law. The civil law circles pay little attention to this special civil liability, but the maritime law takes the shipping as the center idea makes it have the limitation in the maritime personal injury civil liability. The author puts the research perspective into the civil liability of personal injury at sea, taking the theory of civil liability of personal injury as the frame and combining the particularity of personal injury at sea, to analyze the civil liability of personal injury at sea relatively systematically. This paper discusses the concept and characteristics of civil liability for personal injury at sea, the principle of imputation, the concurrence of liability and the scope of liability. In the course of the discussion, the international conventions and the current legal situation of our country are considered and analyzed. At last, some suggestions for the improvement of the legal system of personal injury at sea in China are put forward. Chapter one first discusses the concept of personal injury at sea, and considers that personal injury at sea refers to the operation of personal injury at sea or in navigable waters connected with the sea or other specific premises closely related to the sea, Physical and mental injury occurring in management and service activities; At the same time, this paper analyzes the space-time elements and the essential elements of personal injury at sea, and thinks that the more comprehensive standard for the definition of personal injury at sea is to combine the formal elements with the substantive elements. Secondly, this paper analyzes the general characteristics of the civil liability for personal injury at sea and its characteristics different from the general civil liability, which is mainly manifested in the particularity of the subject of liability, the imbalance of liability burden and the international and mandatory regulation of liability. Thirdly, the civil liability of personal injury at sea is classified according to different standards. The second chapter, guided by the relevant principles of civil law and taking into account the particularity of China's maritime law transplantation, analyzes the civil liability system for personal injury at sea. From the angle of the legal relationship between the parties, this paper expounds the liability imputation principle of maritime personal injury compensation according to the nature of liability. The third chapter mainly discusses the liability concurrence of personal injury at sea. The concurrence of liability is recognized in the field of civil law in our country, and the application of maritime law to the concurrence of maritime liability is different from that of civil law. International conventions have adopted the attitude of avoidance and avoidance of liability competition, and China's maritime law neither draws lessons from the basis of subdivision of liability in the Convention, avoids the practice of concurrence of liability, nor creates a special approach to dealing with it. But the choice of domestic civil law treatment, recognition of merger to limit. In my opinion, this has a negative impact on the international unification of maritime law. The fourth chapter mainly discusses the scope of liability for personal injury at sea. It relates to the principle and responsibility of compensation
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D99;D923
【引证文献】
相关博士学位论文 前1条
1 殷悦;海上人身伤亡损害赔偿法律问题研究[D];武汉大学;2009年
相关硕士学位论文 前2条
1 姜雪丽;海上钻井平台造成人身损害赔偿研究[D];大连海事大学;2012年
2 贾臻;海上人身伤亡损害赔偿的归责原则研究[D];上海海事大学;2007年
本文编号：2457786
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